The European border protection agency Frontex has been criticized for months - because of alarming reports of so-called "pushbacks" in the Aegean Sea.
The Greek coast guard prevented inflatables carrying migrants and refugees from reaching the Greek islands and is said to have escorted a few boats back into Turkish waters.
In any case, Frontex ships and aircraft are said to have been marginally involved in these pushbacks.
In a remarkable interview with the FAZ, Frontex Executive Director Leggeri launched a counterattack after the Commission in Brussels and the border protection agency in Warsaw had previously relied on a mixture of education and appeasement. If illegal entry and human trafficking are suspected, “Greece can instruct the boats to change course” and, if necessary, force them to change course.
From a legal point of view, the situation is by no means as clear-cut as the blanket designation of the pushbacks as "illegal" suggests. An EU regulation agreed in 2014 by the European Parliament and the Council of Ministers states in black and white that ships must change course if necessary if the suspicion that they are being used to “smuggle migrants” is confirmed become. This is typically the case in the Aegean. Legal pushbacks are not the Executive Director's invention, but are based on a UN Convention from the year 2000, which calls on states to take consistent action against people smugglers. In this sense, the EU treaties also want to “intensify the fight against” illegal entry. Frontex was created to achieve these goals. Now the fact isthat there can be “legal” pushbacks, not a license for general rejections. Rather, the European regulations and human rights also include important requirements that protect migrants and refugees. Options for action and reform approaches result from four counter-arguments, under which circumstances the pushbacks are actually "illegal".
Firstly, people in distress must be rescued under international law of the sea. Nobody denies that, and yet the consequences in the Aegean are far from clear. When a dinghy is in distress depends on the circumstances of the individual case. A twelve kilometer crossing to Lesbos is less dangerous than crossing the open Atlantic to the Canary Islands. Especially in the Aegean it would be too easy to claim that inflatables are generally unsuitable for sea and that any overcrowding causes distress. Ultimately, the captain has to decide. The Greek Coast Guard regularly invokes this margin to justify why they did not bring the occupants of an inflatable boat on board.
Second, European asylum law also applies at the external borders. In addition to the aforementioned ordinance from 2014, coastguard ships must also comply with the Asylum Procedure Directive from 2013. There it is written that an asylum application can also be made “at the border” and “in the territorial waters”. Only recently the Court of Justice of the European Union (ECJ) in Luxembourg ruled that all state authorities are obliged to accept asylum applications. Border police officers must forward applicants to the competent authorities. Frontex almost completely ignores these rules in its internal investigations, although they must be observed.